Judge says she can't stop copyright infringement on Napster site

DAVID KRAVETS

Associated Press

SAN FRANCISCO -- A federal judge overseeing the case against
Napster Inc. essentially threw up her hands and appealed for help
Friday. For the moment, her memorandum guarantees Napster users can
continue downloading copyright music at will.

The record labels want Napster to remove any copyright songs
they identify on the song-swapping service, a position U.S.
District Judge Marilyn Hall Patel has strongly endorsed in a series
of rulings.

But removing the songs has proven exceptionally difficult, since
Napster users constantly make them reappear under different file
names, staying one step ahead of Napster's efforts to remove
songs.

Napster has said it can't possibly keep up with every variation
on its network, which Patel has described as an out-of-control
"monster" that should be shut down entirely.

On Friday, however, Patel effectively acknowledged that unless
an appellate court clarifies its ruling in the case, she can't
force Napster to identify and remove all those files.

In other words, for now, it remains the record labels' burden to
identify infringing songs on Napster's ever-changing index of file
names.

Patel invited the Recording Industry Association of America to
"seek clarification in the court of appeals."

The 9th U.S. Circuit Court of Appeals upheld Patel's July order
that Napster remove all copyright works from its file-swapping
site, but with several key caveats. The appellate court said the
record industry trade group must "provide notice to Napster of
copyrighted works and files containing such works available on the
Napster system before Napster has the duty to disable access to the
offending content."

Patel ruled Friday that the record labels' interpretation, that
they need not identify individual files, "requires reading more
into the paragraph than the 9th Circuit has made apparent."

Napster's interpretation: It has to screen out songs only after
the record labels identify specific infringing files, along with
proof of copyright ownership.

Napster recently began using Gracenote, a Berkeley-based company
that keeps a huge database of recorded music, to help screen songs.
But Gracenote doesn't compensate for changing song titles and
artist name spellings that users twist to get around the
screens.

For example, a search for the Beatles hit "Happiness Is a Warm
Gun" returns no results in Napster's search engine. But type in
"Fab Four" as the artist and the song appears, along with many
other Beatles hits.

Unless record labels can prove that a particular file name is
infringing -- in this example, that these individual "Fab Four"
song files are really Beatles' songs -- Napster is not obligated to
remove them.

The industry argues that it need only provide the artist and
song name, not the thousands of files appearing on Napster's
indexes.

Patel also invited both sides to submit more technical guidance
on how Napster might prevent newly released songs from appearing on
the site and noted that her own "neutral technology adviser," A.J.
Nichols, is studying the technological issues in the case.

"The court will reserve making any findings regarding the
relevant technology until it has reviewed Dr. Nichols' report," she
said.

Napster attorney Robert Silver praised Patel's reading of the
appellate ruling. If record labels want to stop the trading of
copyright music, it's crucial that they provide specific file names
to Napster.

"It is the only way that we can maximize the effectiveness of
the filtering of noticed works that are actually on the system,"
Silver said.

A total of 17 million Americans -- 20 percent of all people
using the Internet -- used Napster in February, and despite
court-ordered screening technology, 12 million people still managed
to use it in March, according to the Jupiter Media Metrix research
firm.

Meanwhile, other ways of trading music over the Web are gaining
in popularity. People logging on to Bearshare.com, a decentralized
network of users communicating directly with one another, grew from
187,000 in February to 520,000 in March, the research firm
said.